' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No,294-J of 2011, (Khawar v. The State), filed by the appellant, Khawar, against his conviction and sentence, Criminal Revision No,317 of 2010 (Mst. Ruqaya Liaqat v. The State and another) filed by the complainant Mst.
Ruqayya Liaqat for enhancement of the amount of compensation, and Murder Reference No,161 of 2010 (The State v. Khawar), sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Khawar convict, as all these matters have arisen out of the same judgment dated 22-2-2010, passed by the learned Additional Sessions Judge, Depalpur District Okara. Khawar appellant , along with Muhammad Ahmad alias Babri was tried in a private complaint lodged under section 302/34 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 22-2-2010, has convicted and sentenced the appellant as under:- Khawar son Of Ashiq.
' Under section 302 (b) of P.P.C. to death for committing the murder of Liaqat Ali (deceased). He was directed to pay compensation of Rs, 2,00,000 (rupees two hundred thousand) under section 544-A of Cr.P.C. To the legal heirs of Liaqat Ali (deceased) and in default whereof, he was directed to further undergo 6 months' S.I.
' The learned trial Court, vide the same judgment, however, acquitted co-accused, namely, Muhammad Ahmad alias Babri while extending benefit of doubt to him.
2. Brief facts of the case as given by the complainant Muhammad Iqbal (P.W.1) in the F.I.R. (Exh.
CW3/A) are that he (complainant) was a shop-keeper. His (complainant's) real brother Liaqat Ali (deceased), aged 40/42 years, used to sell bakery products in different villages on motorcycle Yamaha bearing Registration No 2297/OKE. On 30-10-2007, at about 11:00 a.m., Liaqat Ali (deceased) after selling his bakery products was going from village Dargan towards Qila Sadda Singh on the Canal Link Road, whereas, he (complainant) along with Niamat Ali (P.W.2) and Muhammad Sarwar (given up P.W.) was at some distance behind Liaqat Ali (deceased) and when they reached at Shadiwal Morr in the land of one Sardar Muhammad Jat, two unknown accused persons, who were armed with firearm weapons came there, while riding on a motorcycle. The said accused persons brought their motorcycle parallel to the motorcycle of Liaqat Ali (deceased) and made a fire shot at Liaqat Ali (deceased) who fell down from the motorcycle. They (P.Ws.) attended to Liaqat Ali (deceased) but he had already died. Accused persons fled away from the spot on their motorcycle.
' Complainant Muhammad Iqbal (P.W.1) initially lodged F.I.R. No 459 dated 30-10-2007 offence under sections 302/34, P.P.C. At Police Station Mandi Ahmadabad District Okara against two unknown accused persons and thereafter, the appellant along with co-accused Muhammad Ahmad alias Babri was nominated by the complainant through written application (Exh.PC), which as per statement of the complainant was moved 20/25 days after the occurrence. The police declared the appellant and his co-accused as innocent, during investigation of the case and feeling dissatisfied with the police investigation, the complainant filed private complaint (Exh. PB).
3. After completion of the formalities i.e, recording the cursory statements of the P.Ws., the learned trial Court framed the charge against the appellant Khawar and his co-accused Muhammad Ahmad alias Babri (since acquitted) under sections 302/34, P.P.C., on 14-2-2009, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced, three witnesses, during the trial, whereas, ten witnesses were examined as. Court Witnesses. The complainant Muhammad Iqbal (P.W.1), Niamat Ali (P.W.2) and Ghulam Rasool (C.W.5) have furnished the ocular account of the prosecution.
' The medical evidence was furnished by Dr. Muhammad Sharif, (P. W.3).
' Muhammad Ashraf, Inspector (CW-6), and Muhammad Aslam Inspector (CW-8) were the Investigating Officers of this case. Muhammad Nawaz Warraich SSP (CW-7) supervised and verified the investigation conducted by Muhammad Ashraf, Inspector (CW-6). Zulfiqar Ali 1643/HC (CW-10) has given the secondary evidence regarding the investigation conducted by Ghulam Shabbir, S.I (since dead). Muhammad Anwar (CW-1), Muhammad Yaqoob 1003/HC (CW-2), Pervez Iqbal, A.S.-I. (CW-3), Bashir Ahmad, S.I (CW-4), and Ghulam Murtaza Patwari Halqa (CW-9) were the formal witnesses.
' The prosecution has also produced documentary evidence in the shape of Fard Bayan' of the complainant (Exh.PA), police Proceedings (Exh.CW-4/A), private complaint (Exh.PB), application of the complainant nominating the accused persons (Exh.PC), memo of possession of blood stained earth from the place of occurrence (Exh.PD), memo of possession of motorcycle bearing Registration No, 2297/OKE (Exh.PE), post mortem report of the deceased (Exh.PF), pictorial diagrams (Exh.PF/1) & (Exh.PF/ 2), report of Chemical Examiner (Exh.PG), report of Serologist (Exh.PH), memo of possession of last worn clothes of the deceased (Exh.CW-2/A), F. I . R. (Exh.CW-3/A), scaled site plan in duplicate of the place of occurrence (Exh.CW-9/A) and (Exh.CW-9/B), application for post mortem examination (Exh.CW-10/A), injury statement (Exh. CW-10/B) , inquest report (Exh.CW- 10/C), rough site plan of the place of occurrence (Exh.CW-10/D), and closed the prosecution evidence.
5. The statement of appellant under section 342 of Cr.P.C., was recorded. He refuted all the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you", the appellant, replied as under:-- "It is an unseen occurrence committed by unknown dacoits for the purpose of looting the victim/ deceased on the road. None of the P. Ws. Had witnessed the occurrence. That is why the F.I.R. No, 459/07 was originally registered against unknown accused. I and my co-accused were roped in this case due to the false motive a dispute of arrears of sale money with Mst. Ruqayya Bibi widow of deceased, who used to run a grocery shop in the mohallah and I used to purchase some commodities from her shop on credit and being mohalladar, the parties are very well known to each other for the last many years. I and my co-accused have been roped in this case due to the false motive, having a dispute of arrears of sale money owing to Mst. Ruqayya Bibi widow of the deceased, who used to run a Karyyana shop in my mohallah and I used to purchase from her some commodities on credit basis and being mohalladars the parties are very well known to each other, for the last many years. I and the co-accused have been roped through supplementary statement and then in private complaint, for the only purpose of blackmailing and extracting money. At the time of alleged occurrence I was available in the house of my mohallandar Sakina Bibi. Co-accused Muhammad Ahmad alias Baberi has been roped in the case due to his relationship with me otherwise, I and my co-accused have nothing to do in this case. The P. Ws.
Have deposed against me at the behest of Mst. Ruqayya Bibi widow of the deceased for the aforesaid purpose. Ghulam Rasool CW-5 is a person of bad character, who has been managed by the complainant party by way of bribery".
' Appellant Khawar did not make statement under section 340 (2) of Cr.P.C. In disproof of the allegations levelled against him, however, he produced copy of the statement of Liaqat Ali recorded under section 161, Cr.P.0 (Exh.DA) and copy of statement of Ghulam Rasool (CW5) recorded under section 161, Cr.P.C. (Exh.DA/1) in his defence.
6. The learned trial Court vide its judgment dated 22-2-2010, found the appellant Khawar, guilty and convicted and sentenced him as mentioned and detailed above.
7. The learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the appellant is admittedly not named in the F.I.R., even no description of any of the assailants is mentioned therein and there is no allegation that any attempt was made by the assailants to snatch anything from the deceased or the witnesses; that the appellant along with co-accused was implicated in this case through an application (Exh.PC) which was submitted by the complainant Muhammad Iqbal about 20/25 days after the occurrence, wherein, he simply stated that now he had come to know that the appellant and his co-accused are involved in the commission of crime but he did not disclose any source of his information as such no reliance can be placed on the evidence of the complainant; that no identification parade of the appellant was conducted in this case; that the statement of one of the eye-witnesses, namely, Ghulam Rasool (CW-5) is also immaterial because his name is not mentioned in the F.I.R. As a witness. Moreover, his statement was recorded by the police on 7-1- 2008 i.e, after about 69 days of the occurrence and he did not state anything as to why he remained mum during this period and even his statement recorded under section 161 of Cr.P.C.
Was different from the statement which he made before the learned trial Court and he was confronted with his previous statement Exh. DA/1 and the improvements made by him were duly brought on the record; that no identification parade was conducted in this case and the identification of the accused in police station is not permissible under the law; that nothing incriminating was recovered from the possession of appellant during the investigation of this case; that the appellant along with co-accused was declared innocent by the police; that from all angles prosecution case is of doubtful nature; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge.
8. On the other hand, the learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant, opposes this appeal on the grounds that there was no enmity between the eye-witnesses and the appellant for his false implication in this case; that besides the complainant Muhammad Iqbal (P.W.1) and Niamat Ali (P.W.2), another person namely, Ghulam Rasool (CW-5) had also witnessed the occurrence who was grazing the cattle just 1-acre away from the place of occurrence and he too had no enmity with the accused side and also, having no relationship with the complainant side or the deceased and this fact was not denied by the defence rather his presence was admitted; that if the statements of the complainant Muhammad Iqbal (P.W.1) and Niamat Ali (P.W.2) are ignored even then there remains sufficient evidence on the record, in the shape of straight forward and confidence-inspiring testimony of Ghulam Rasool (CW-5) who is an independent witness; that the appellant cannot get any benefit from the acquittal of his co-accused as no active role was attributed to Muhammad Ahmad alias Babri (co-accused since acquitted), whereas, specific role of causing fire arm injury to the deceased was attributed to the appellant which is fully supported by the medical evidence; that the police opinion qua innocence of the appellant and his co-accused is inadmissible in evidence and has no value in the eye of law; that the appellant caused death of an innocent person without any justification; that the prosecution has fully proved its case beyond shadow of doubt, the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. It is further argued by learned counsel for the complainant that the compensation amount awarded by the learned trial court may also be enhanced.
9. We have heard the arguments of the learned counsel for the appellant, the learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant, and have also gone through the evidence available on the record, with their able assistance.
10. The detail of the prosecution case, as set forth in the F.I.R. (Exh. CW-3/A) has already been given in para No,2 above therefore, there is no need to repeat the same. The appellant was not named in the F.I.R. (Exh.CW-3/A) which was lodged against two unknown accused persons. No description like heights, colours, ages etc of the said accused persons were mentioned in the F.I.R. As mentioned earlier, the appellant was implicated in this case by the complainant through his written application (Exh.PC) wherein it is alleged by the complainant that after probing into the matter, it is established that Khawar (appellant) made fire shot at the deceased and committed his murder, whereas, his Behnoi (brother-in-law) namely Muhammad Ahmad alias Babri was driving the motorcycle of the accused persons. No date is mentioned on the said application (Exh.
PC) however, the complainant Muhammad Iqbal (P.W.1) while making his statement before the learned trial Court has stated that he moved the application (Exh.PC), 20/25 days after the occurrence. It is noteworthy that no source of information, as to how the complainant came to know about the names and roles of the appellant and his co-accused during the occurrence was mentioned in application (Exh.PC) No identification parade of the appellant or his co-accused was ever held in this case. As the appellant was not named by the prosecution witnesses in the F.I.R., therefore, holding of identification parade was necessary in this case.
11. The ocular account of the prosecution was furnished by Muhammad Iqbal complainant (P.W.1), Niamat Ali (P.W.2) and Ghulam Rasool (CW-5). The occurrence in this case took place in the area of village Qila Sadda Singh, whereas, Muhammad Iqbal (P.W.1) and Niamat All (P.W.2) are residents of village Hujrah Shah Moqeem which, according to the statement of the complainant Muhammad Iqbal (P.W.1), was situated at a distance of 12/13 kilometers from the place of occurrence. Both the above mentioned witnesses are therefore, chance witnesses. No reason of their presence at the spot at the relevant time was mentioned in the F . I . R . (Exh .CW-3/A) . Although the complainant Muhammad Iqbal (P.W.1) has stated during his cross-examination that on the day of occurrence he went to Qadirabad in order to purchase a buffalo but no receipt or any other proof regarding the purchase of a buffalo has been brought on the record. Presence of the above mentioned eyewitnesses at the spot at the time of occurrence is also belied from the evidence of Ghularn Rasool (CW-5) who stated during his cross-examination that nobody else except him had witnessed the occurrence. Although Ghulam Rasool (CW-5) is resident of the area (village Sadda Singh), where this occurrence took place and he also claimed that he had witnessed the occurrence, but the name of this witness was not mentioned in the F.I.R. (Exh.CW-3/A). It is astonishing to note that this witness claimed that he witnessed the occurrence of a murder case but he did not inform to anybody for a considerable period. He stated during his cross-examination that he got recorded his statement before Ghulam Shabbir, S.I. On 7-1-2008, whereas, the occurrence took place on 30-10-2007. Although this witness has also stated that he appeared before the I.O. On the day of occurrence and narrated the entire facts to him but no such statement has been brought on the record. We have noted that the name of this witness was not mentioned by the complainant Muhammad Iqbal (P.W.1) even in his written application (Exh.PC), which was moved 20/25 days after the occurrence. We are therefore, of the view that the evidence of above mentioned eye-witnesses is not worthy of reliance.
12. It is the case of the prosecution that the appellant and his co-accused were armed with fire arm weapons at he time of occurrence and they reached at the place of occurrence on a a motorcycle but neither any firearm weapon nor any motorcycle was recovered from the possession of the appellant and his co-accused during the investigation of this case.
13. It is also noteworthy that no motive was alleged by the complainant in the F.I.R. (Exh.CW-3/A).
We have noted that no motive was alleged even in the application (Exh.PC) of the complainant, which was moved about 20/25 days after the occurrence. Muhammad Iqbal complainant (P.W.1) while appearing before the learned trial court has stated that the accused persons committed the occurrence as they wanted to commit dacoity, whereas, Niamat Ali (P.W.2) has stated that the motive for the occurrence was that previously the accused persons and Liaqat Ali (deceased) had some dispute over money bargain and as such the evidence produced by the complainant about the motive is self-contradictory. Relevant parts of the examination in chief of the above mentioned witness qua the motive part of the occurrence read as under:-- ' Muhammad Iqbal (P.W.1).
"The accused fired at Liaqat All as they wanted to commit dacoity with him."
' Niamat Ali (P.W.2).
"The motive for this occurrence was that previously the accused persons and Liaqat Ali deceased had some dispute over money bargain."
' We are therefore, of the view that the prosecution evidence qua the motive is self-contradictory.
Moreover, no detail of the previous dispute of money between the accused persons and the deceased was mentioned by Niamat Ali (P.W.2), whereas, nothing was looted during the occurrence to prove the motive of attempt to commit dacoity, as alleged by Muhammad Iqbal complainant (P.W.1). Even motorcycle of the deceased was not snatched during the occurrence and the same was taken into possession from the spot vide memo Exh. PE. We are therefore, of the view that the prosecution could not prove any motive in this case.
14. Insofar as the medical evidence furnished by the prosecution is concerned, it is by now well- settled law that medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to the receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of 'Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others' (PLD 2009 SC 53). (Altaf Hussain v.
Fakhar Hussain and another' (2008 SCM R 1103) and 'Mursal Kazmi alias Qamar Shah and another v.
The State' (2009 SCM R 1410). As there is no convincing, direct or circumstantial evidence available against the appellant, therefore, there is no need to discuss the medical evidence of the prosecution.
15. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt.
It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In ' Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page, was pleased to observe as under:-- '5 The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCM R 230), at page 236, observed as under:-- '13.. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. "
16. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No,294-J of 2011 filed by Khawar appellant, set aside his conviction and sentence recorded by the learned Additional Sessions Jude, Depalpur District Okara vide judgment dated 22-2-2010 and acquit him of the charges by extending him the benefit of doubt. Khawar appellant is in custody, he be released forthwith if not required in any other case.
17. As we have accepted Criminal Appeal No,294-J of 2011 filed by Khawar (appellant) against his conviction and acquitted him of the charge by extending the benefit of doubt to him therefore, Criminal Revision No,317 of 2010, filed by the complainant for enhancement of the amount of compensation awarded 'by the learned trial Court against the appellant has become infructuous and the same, is dismissed in limine.
18. Murder Reference No,161 of 2010 is answered in the NEGATIVE and the sentence of death of Khawar (convict) is NOT CONFIRMED.